Thomas v. State

Eldridge, J., delivered the opinion of the Court. Petitioner, Jerome Thomas, was convicted in the District Court of Maryland, Baltimore City, of violating Maryland Code (1957, 1970 Repl. Vol., 1975 Cum. Supp.), Art. 66V2, § 4-102.

Section 4-102 provides that it is a misdemeanor to “drive” a motor vehicle without the consent of its owner and with the intent temporarily to deprive the owner of possession. 1 Thomas was subsequently tried and convicted in ²⁵⁹ the Circuit Court for Montgomery County for violating Code (1957, 1976 Repl. Vol.), Art. 27, § 349, often referred to as the “unauthorized use” statute. Section 349, inter alia, proscribes the “taking” of a motor vehicle without the consent of the owner and without the intent to appropriate or convert the vehicle. 2 Both prosecutions were based upon the same course of conduct. The question presented is whether, under the circumstances of this case, the second prosecution in the circuit court was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, which is applicable to state court proceedings by virtue of the Fourteenth Amendment.

Officer John Holt of the Baltimore Harbor Tunnel Police Force stopped Thomas on February 6, 1973, as Thomas was backing an automobile away from a toll booth. The officer inquired why Thomas was backing away from an open booth and asked to see Thomas’s driver’s license and vehicle registration card. Thomas was unable to produce the documents, stating that he had left his operator’s license at home and that he had borrowed the car from a friend identified only as “Frank.” Officer Holt learned the identity of the owner of the automobile from the District of Columbia Motor Vehicle Department, and discovered from the owner that he had not loaned the car to anyone but that the vehicle had been stolen from the lot of an automobile repair shop in Montgomery County. Thomas was charged with violating Art. 66V2, § 6-101 (failure to have operator’s permit) and with violating Art. 66V2, § 4-102.

Trial was held on March 1, 1973, in the District Court of Maryland, where Thomas was found guilty of both violations of Art. 66V2 and sentenced to two consecutive 60 day terms of imprisonment. Thereafter, on June 7, 1973, Thomas was indicted by the Grand Jury for Montgomery County in a three count indictment charging him with larceny of a motor vehicle in violation of Art. 27, § 348, unauthorized use of a motor ²⁶⁰ vehicle in violation of Art. 27, § 349, and receiving stolen property in violation of Art. 27, § 466. All charges were based upon the same series of events as involved in the district court prosecution. Thomas filed a motion to dismiss the indictment on the grounds of res judicata, collateral estoppel, and double jeopardy.

The motion was denied after a hearing, the court stating in its opinion and order of April 1, 1974, that the applicable test to determine whether two separate statutory provisions constitute a single offense is “whether each provision requires proof of a fact which the other does not.” The court concluded that the previous offenses were not the same as those charged in the indictment. Trial was held on August 19, 1974, when Thomas renewed the motion to dismiss which was again denied. At the conclusion of the trial, the court dismissed the count charging receiving stolen property as well as the larceny count, finding as to the latter that the previous district court conviction of driving a vehicle without the consent of the owner conclusively established that Thomas did not have the requisite intent to deprive the owner of possession permanently. Thomas was found guilty of unauthorized use of a motor vehicle.

The court reiterated and elaborated upon its previous order denying Thomas’s motion, finding that the offense of driving without consent (Art. 66V2, § 4-102) had at least one “dissimilar” element, driving, which the offense of unauthorized use (Art. 27, § 349) did not. Thomas was sentenced to two years’ imprisonment, with credit for the time served as a result of the district court convictions. Thomas appealed the unauthorized use conviction to the Court of Special Appeals, contending that the offense of driving a vehicle without the consent of the owner (§ 4-102) and unauthorized use of a vehicle (§ 349) constitute the same offense within the meaning of the prohibition against double jeopardy. Thomas argued that § 349 did not require proof of any additional fact not required by § 4-102 (a), and hence the two provisions constituted the same offense for double jeopardy purposes. ²⁶¹ The Court of Special Appeals rejected Thomas’s argument, finding that § 4-102 (a) required proof of driving, not an element of § 349, while § 349 required proof of entry, which is not an element of § 4-102 (a).

Thus, the Court of Special Appeals held that the two provisions both require proof of a fact which the other does not and therefore are not the same offense within the meaning of the double jeopardy clause. The court also concluded that the element of entry in § 349 need not be affirmatively proven but could be inferred from the evidence that Thomas was operating a vehicle which had been taken without the consent of the owner or his bailee, and that neither had given Thomas permission to operate the automobile. We granted certiorari to consider whether, under the circumstances of this case, both offenses are to be deemed the same so that a prior conviction for one would bar a subsequent trial on the other. Traditionally, the Fifth Amendment prohibition against placing a defendant twice in jeopardy for the same offense has been said to extend to three distinct situations.

It bars a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after a conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U. S. 711, 717 , 89 S. Ct. 2072 , 23 L.Ed.2d 656 (1969) 3 As was noted in Pearce , common law principles regarding double jeopardy, including the prohibition against a second trial for the same offense after conviction, had been recognized by the Court in Ex Parte ²⁶² Lange, 18 Wall. 163 (1873), as being inherent in the constitutional guarantee against double jeopardy: “The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.” 18 Wall, at 169. “. . . we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.” 18 Wall, at 173. See also United States v. Wilson, 420 U. S. 332, 339-342 , 95 S. Ct. 1013 , 43 L.Ed.2d 232 (1975); J. Sigler, Double Jeopardy 27-34 (1969). And as this Court stated in Gilpin v. State, 142 Md. 464, 466 , 121 A. 354 (1923), under both common law principles and the double jeopardy provision of the United States Constitution a second trial for the same offense after a prior conviction is prohibited: “That no person shall, for the same offense, be twice put in jeopardy, is both a provision of the Constitution of the United States, and an established rule of the common law, and a plea of former jeopardy is good under either.

The rule forbids a second trial for the same offense whether the accused at the former trial was acquitted or convicted.” But while the rule is clear, its application often is not. A principal difficulty which frequently arises is determining when two separate statutory provisions constitute the same offense for double jeopardy purposes. The most widely used test for determining whether two offenses are the same for double jeopardy purposes is the “same evidence test” or “required evidence test,” which focuses upon the evidence necessary to sustain a conviction on each offense. In the landmark case of Rex v. Vandercomb and Abbot, 2 Leach 708, 168 Eng.

Rep. 455 (1796), the ²⁶³ indictment charged the defendants with breaking and entering a house. The defendants were acquitted when it was learned that the larceny had been committed a day earlier than charged in the indictment. It was held that a subsequent prosecution under an indictment alleging the proper date was not barred by the prior acquittal, the court stating “that unless the first indictment were such as the prisoner might have been convicted upon proof of facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second.” 2 Leach at 720. Multiple prosecutions were prohibited only if the evidence necessary to secure a conviction in the second prosecution would have been sufficient to convict in the first prosecution also.

Thus, under the rule in Vandercomb, the order in which prosecutions were brought was critical in determining whether two prosecutions were to be permitted. For example, if the second prosecution were for a lesser offense, the evidence necessary to convict in the second prosecution would not be sufficient for the first prosecution and therefore the second prosecution would be permitted. The result would be otherwise if the second prosecution were for the greater offense. See Comment, Double Jeopardy, 75 Yale L. J. 262, 270-271 (1965).

The leading early American case applying the same evidence test is Morey v. Commonwealth, 108 Mass. 433 (1871). The defendant had been convicted of “lewd and lascivious cohabitation” and later of adultery, both charges arising from the same incident. On appeal, the defendant contended that his conviction for cohabitation barred the later conviction for adultery as the acts alleged in the indictment charging adultery were the same as those upon which he was convicted of cohabitation. The court rejected this argument, emphasizing that the identity of offenses is not determined by the acts of the defendant, but rather by the evidence required by the statutes for conviction: “A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have ²⁶⁴ been sufficient to warrant a conviction upon the other.

The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. ”(108 Mass, at 434, emphasis supplied.) By holding that each offense charged must require proof of a fact which the other does not, the court emphasized that the evidence distinguishing the two offenses must be that required by the statute and not merely evidence adduced at trial. Morey also significantly modified the rule in Vandercomb, expanding the protection afforded by applying the rule there “backwards.” Thus, under Morey , a subsequent prosecution was barred not only when the evidence required to convict on the second charge would support a conviction on the first, as held in Vandercomb, but also when the evidence required to secure a conviction on the first charge would have supported a conviction on the subsequent charge. The required evidence test as formulated in Morey was adopted by the Supreme Court as the standard for determining whether separate statutory offenses were the same for double jeopardy purposes.

In Gavieres v. United States, 220 U. S. 338 , 31 S. Ct. 421 , 55 L. Ed. 489 (1911), the Court held that successive prosecutions for drunk and disorderly conduct and for insulting a public official were not prohibited by the Fifth Amendment protection against double jeopardy even though both offenses arose from the same incident. The court relied upon the Morey test that two offenses are not the same “ ‘if each statute requires proof of an additional fact which the other does not....’” 220 U. S. at 342 . Similarly, in Blockburger v. United States, 284 U. S. 299 , 52 S. Ct. 180 , 76 L. Ed. 306 (1932), the Supreme Court used the required evidence test in determining that multiple ²⁶⁵ sentences on each of two counts of an indictment, both of which were based upon a single sale of morphine to the same purchaser, did not violate the prohibition against double jeopardy. One count charged a sale of morphine not in or from an original stamped package as required by statute, while the other charged that the same sale was not made pursuant to a written order of the purchaser as required by statute.

The Court rejected the contention that both counts charged but one offense for which only a single penalty could be imposed, stating ( 284 U. S. at 304 ): “Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” As made clear in Blockburger , by looking to the evidence required by the statute for conviction, the required evidence test focuses upon the elements of each statute. Thus, each statute constitutes a separate offense if each contains a distinct element. 4 The required evidence test used in Blockburger was expressly reaffirmed in Gore v. United States, 357 U. S. 386 , 78 S. Ct. 1280 , 2 L.Ed.2d 1405 (1958), where the Court rejected the contention that the test was not consistent with the constitutional prohibition against double jeopardy. The required evidence test has continued to be the standard by which the federal courts have determined whether two ²⁶⁶ separate statutory offenses constitute the same offense for double jeopardy purposes.

Ebeling v. Morgan, 237 U. S. 625, 630-631 , 35 S. Ct. 710 , 59 L. Ed. 1151 (1915); Burton v. United States, 202 U. S. 344, 381 , 26 S. Ct. 688 , 50 L. Ed. 1057 (1906); Carter v. McClaughry, 183 U. S. 365, 394-395 , 22 S. Ct. 181 , 46 L. Ed. 236 (1902); In re Nielsen, 131 U. S. 176, 188 , 9 S. Ct. 672 , 33 L. Ed. 118 (1889); Robbins v. United States, 476 F. 2d 26, 32-33 (10th Cir. 1973); United States v. Wilder, 463 F. 2d 1263, 1266 (D.C. Cir. 1972); United States v. Bruni,